Thursday, August 7, 2014

Palestinian shift brings war crimes case closer to Israel

The possibility of a
war crimes investigation into the conduct of Israeli forces in Gaza,
until recently unthinkable, has grown after the Palestinians said this
week they wanted to become a party to the International Criminal Court.

The world's permanent war crimes court in The Hague declined two years
ago to investigate allegations against the Israeli military in
2008-2009, citing the uncertain legal status of the Palestinian
Authority.

A lot has changed since then.
Fresh
allegations of war crimes have flowed in recent weeks from fighting in
Gaza, where Israel responded to a surge in rocket attacks by Hamas
militants with air strikes and a ground incursion. The Palestinians this
week unexpectedly said they are just one procedural step away from ICC
membership.

The legal
groundwork for such a move was laid in Nov 2012 when the 193-member U.N.
General Assembly overwhelmingly approved the de facto recognition of
the sovereign state of Palestine by upgrading the Palestinian
Authority's observer status to "non-member state" from "entity.”

If the Palestinians were to sign the ICC's founding treaty, the Rome
Statute, the court would have jurisdiction over crimes committed in the
Palestinian territories.

With Palestinian authorization, an ICC investigation could then examine
events as far back as July 1, 2002, when the court opened with a mandate
to try individuals for war crimes, crimes against humanity and
genocide.

"If Palestine
applies it will be admitted to the ICC," John Dugard, international law
professor and a former U.N. Special Rapporteur for the Palestinian
territories, told Reuters.

"The U.N. has spoken and it has recognized the state of Palestine and it
is now for the ICC to admit Palestine. I cannot see how that can be
resisted."

Dugard said the
Palestinians could then ask prosecutors to investigate alleged crimes in
July and August in Gaza, but also the legality of Israeli West Bank
settlements.